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High Court Of Delhi
SUBHASH CHAMBER - Appellant
Versus
UNION OF INDIA - Respondent
L.P.A. 1311 of 1989
Decided On : 02/18/1991
(ii) Constitution of India 1950 - Art, 22(5) COFEPOSA ACT, 1974 - Sections 3 & 7 Detention u/s 3 - Writ petition - Ground of delay in execution of the detention orders Except for a general allegation that the petitioners were evading service and they were not available at the given addresses9 there is no explanation as to what steps were taken to serve the detention order on the petitioners - No affidavit or explanation was furnished - Facts on record reveal that the respondents were not at all serious about the execution of the detention orders - Conduct of respondents throws doubt about the genuineness of the subjective satisfaction of the detaining authority - In. these circumstances delay in execution of the order is fatal - The order is liable lobe quashed.
Held: The present is a case of preventive detention where the object is to detain a person in order to snap his links with the underworld. A reference to the objects of the COFEPOSA Act will show that for a person sought to be detained, urgent and effective steps should be taken to serve the detention order. The Act takes into consideration situations where the persons sought to be detained may be absconding and for this purpose Section 7 has been enacted. The procedure prescribed in Section 7 ensures that the person sought to be detained makes himself available in his own interest. In the present case if the petitioners were absconding or evading service of the detention order, what steps were taken by the respondents under Section 7. Except for a bare assertion that order under Section 7(1) (b) of the Act have been issued, nothing is stated as to whether the order was published which is a mandatory requirement under the Statute. Mere issuance of orders is of no consequence unless it is published in the official Gazette.
Further held: While examining the question of delay on merits, the learned Judge has unfortunately proceeded on the basis of petitioner's conduct rather than examining what explanation the State had to offer in this behalf. Further we find that certain assumptions of the learned Single Judge in this connection are not borne out from the record. Firstly, the learned Single Judge has observed that the petitioners were aware of the existence of the detention orders before they came to Court by way of present writ petitions. They had also made representations in two cases to the detaining authority against the detention orders which were ultimately rejected. On the basis of the fact that the petitioners were aware of the detention orders, the learned Single Judge appears to have believed the bald explanation given by the respondents that the petitioners made themselves unavailable and could not be traced anywhere. One may believe that on the knowledge of the detention orders, the detenu may evade detention. However, even if on that basis the petitioners were to evade arrest, the State is not absolved of its primary duty to ensure service of a detention order. The question will still remain what efforts were made by the State to execute the detention orders. We may note here that the first specific date given in L.P.A. 131/89 when the wife of the petitioner was interrogated is 29th September 1988. There is no explanation as to what representatives responsible for the execution of the detention orders were doing till that date. Not even a single date is mentioned when the visit was made to the residence of the petitioner and he was not found.
Result: Appeals allowed. Detention orders quashed.
( 1 ) THIS judgment will dispose of Letters Paten . . Appeals No. 131 of 1989, 132 of 1989 and Cri. W. P. No. 395 of 1989. These cases arc being taken up together since they involve common question of law and the material facts are also almost identical. So far as the L. P. As. are concerned, the detention orders under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter REFERRED TO to as the COFEPOSA Act), were passed on 9th June, 1988, while in Cri. W. 395189, the detention order is dated 14th October. 1988. In all the three cases the detention orders have not been served on the petitioners and the common point urged on their behalf is that the delay in execution!serviceof the detention order vitiates the same. The counsel urges that the delay in service of the detention order shows lack of seriousness/anxiety on the pan of the detaining authority to detain and this according to counsel throws doubts about the genuineness of the subjective satisfaction of the detaining authority.
( 2 ) THE two appeals arise from the judgment of a learned Single Judge of this Court dated 21st November, 1989 whereby the writ petition?, hied by the appellants under Articles 226 and 227 of the Constitution of India, for quashing the older of detention, were dismissed. The bare facts necessary for the purpose of disposing of tire present appeal are that on 9th June, 1988, Shri K. L. Verma, Joint Secretary, Ministry of Finance Department of Revenue, New Delhi, passed the detention orders qua Subhash Chander and Parvesh Kumar, appellants. It is submitted by counsel for the appellants that after passing of the impugned detention order both the appellants had appealed in the court of Metropolitan Magistrate concerned on 13th June, 1988 and 26th September, 1988 and their personal presence is recorded in the proceedings of the court. The appearance of the appellants in the court was in connection with the cases initiated by the authorities which sponsored their detention under the COFEPOSA Act. Represeatatioiis were. made against the detention order by the appellants on 14th October, 1988 which were rejected on 30th November, 1988. Writ petitions were filed by the appellants in this court on 26th December, 1988 which came up before the Vacation Judge on 28th December, 1988. On the said date while issuing notices on the petition", this court was pleased to stay execution of the detention order. This ex parte order was confirmed on 17th February, 1989. Counsel for the appellants has confined his submissions in this appeal only to the question of delay in execution of the detention order. It is submitted by the counsel that the learned Single Ji]da -. i has based the impugned judgment on certain assumptions of fact which were not born out by the record and sscondly, it is submitted that instead of considering the explanation of the respondents regarding their failure to execute the detention order and their failure to 2. ive details of the steps they took in this behalf the learned single Judge has based her judgment on the conduct of the appellants which according to the learned counsel. was not a correct approach.
( 3 ) COUNSEL for the respondents has mainly raised the question of maintainability of the writ pstitions. it is submitted that in view of the failure of the petitioners to surrender before the Court, the writ petitions ought to have been dismissed on this ground alone and ought not to have been entertained at all. This question has been considered by the learned Single Judge and for reasons recorded in the judgment, the writ petitions were entertained. However, on merits, the learned Single Judge was not convinced about the submissions of the petitioners and, therefore, the writ petitions were dismissed.
( 4 ) IN Crl. W. P. No. 395 of 1989 the detention order dated 14th October, 1988 lias not been served on the petitioner till date and, therefore, there has been long de
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